Mims v. United States of America
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 8/31/2015. (PSM)
2015 Aug-31 PM 03:14
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
HAROLD DONNELL MIMS,
UNITED STATES OF AMERICA, )
MEMORANDUM OF OPINION
This is a motion to vacate, set aside, or correct a sentence pursuant to 28
U.S.C. § 2255, filed by Petitioner Harold Donnell Mims (“Mims”) on March 23,
2015. (Doc. 1.) Mims contemporaneously filed a brief in support of this motion.
(Doc. 2.) He challenges his conviction and 240-month sentence resulting from his
plea of guilty to conspiracy to distribute heroin and distribution of heroin which
resulted in death. The United States has responded to the motion (doc. 6), and
Mims has replied (doc. 9). Accordingly, the motion is ripe for review. For the
reasons set forth below, Mims’s § 2255 motion is due to be denied.
In August 2013, a grand jury in the Northern District of Alabama returned a
fifteen-count indictment charging Mims with conspiracy to distribute heroin,
distribution of heroin, distribution of heroin which resulted in death, and use of a
telephone to facilitate the heroin distribution. On February 7, 2014, Mims pleaded
guilty to Count One (Conspiracy) and to Count Nine (Distribution of Heroin
which Resulted in Death), and the United States agreed to dismiss the remaining
counts of the indictment. The parties entered into a written plea agreement that
contained a factual basis for the guilty plea. Mims stipulated and agreed to the
following facts that are relevant to the instant motion:
On February 21, 2013, defendant Harold Mims
distributed heroin to an individual who, later that night,
overdosed and died after ingesting the heroin. Prior to the
sale of the heroin to the overdose victim, agents
intercepted calls between the victim and Mims discussing
the sale. Though not on the scene, agents observed the
deal electronically, using a pole video camera that had
been installed on January 28, 2013. That pole camera was
aimed at #5 4th Court North, Birmingham, AL. After the
victim’s death, another individual told police that he had
been with the victim when they purchased the heroin
from the defendant on February 21, 2013. He and the
overdose victim both ingested the heroin later that night.
The autopsy report confirms that the cause of death was
multiple drug overdose, and the toxicology report
indicates that morphine was present in the victim’s blood
and in his urine. Both the medical examiner and the
forensic toxicologist would testify that, in their opinions,
heroin was the cause of the death.
(Doc. 27 at 7).
On May 27, 2014, this Court sentenced Mims to the statutory minimum
sentence of twenty years imprisonment as to Counts 1 and 9, separately, to be
served concurrently with the other. Judgment was entered on May 29, 2014. Mims
did not appeal.
Section 2255 permits a federal prisoner to bring a collateral challenge by
moving the sentencing court to vacate, set aside, or correct the sentence. 28 U.S.C.
§ 2255(a). Once a petitioner files a § 2255 motion, “[u]nless the motion and the
files and records of the case conclusively show that the prisoner is entitled to no
relief, the court shall . . . grant a prompt hearing thereon, determine the issues and
make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b). A
petitioner is entitled to an evidentiary hearing if he “alleges facts that, if true,
would entitle him to relief.” Aron v. United States, 291 F.3d 708, 715 n.6 (11th Cir.
2002). “[A] petitioner need only allege—not prove—reasonably specific, nonconclusory facts that, if true, would entitle him to relief.” Id. at 715 n.6. However,
this Court need not hold a hearing if the allegations are “patently frivolous,”
“based upon unsupported generalizations,” or “affirmatively contradicted by the
record.” Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989); see, e.g.,
Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004) (“Because the . . .
affidavits submitted by Lynn amount to nothing more than mere conclusory
allegations, the district court was not required to hold an evidentiary hearing on the
issues and correctly denied Lynn’s § 2255 motion.”).
Mims asserted one ground for relief in his § 2255 motion: ineffective
assistance of counsel due to the failure to secure expert testimony that would
exonerate him from the “death resulting” aspect of Count 9. Mims then alleged for
the first time in his later-filed reply brief that he did not understand his plea
agreement but was induced to accept it by defense counsel.
Because Mims filed his § 2255 motion within one year of the date that the
judgment of his conviction became final, his motion is timely. See 28 U.S.C. §
2255(f)(1). Further, nothing in the record indicates that he has previously filed a §
2255 motion. Thus, the current motion is not “successive” within the meaning of
§ 2255(h). Moreover, Mims’s § 2255 motion is not barred by Mims’s plea
agreement. Although Mims waived certain rights when he entered his plea
agreement; he did not waive his right to contest any claims of ineffective assistance
of counsel. Finally, claims of ineffective assistance of counsel may be raised for the
first time in a § 2255 motion as opposed to on direct appeal and are therefore not
subject to a procedural bar. Massaro v. United States, 538 U.S. 500, 504 (2003).
The Sixth Amendment guarantees the right to effective assistance of counsel
in all criminal prosecutions. Yarborough v. Gentry, 540 U.S. 1, 4 (2003). The
standard applicable to claims of ineffective assistance of counsel in post-conviction
motions is well-established: relief will not be granted unless the petitioner can show
not only that counsel’s performance was deficient but also that such deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). More specifically, the movant must show that: (1) his counsel’s
representation fell below an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for his counsel’s unprofessional errors, the result of
the proceeding would have been different. Id. at 687-88. The court need not
“address both components of the inquiry if the defendant makes an insufficient
showing on one.” Id. at 697. This two part standard is applicable to
ineffective-assistance claims arising out of the plea process. Hill v. Lockhart, 474
U.S. 52, 57 (1985). With regard to the prejudice prong in the context of a guilty
plea, the defendant must show “that there is a reasonable probability that, but for
counsel’s errors, [s]he would not have pleaded guilty and would have insisted on
going to trial.” Id. at 59.
Mims first alleges that his trial attorney failed to hire an expert to presumably
rebut the United States’ proof that heroin was the “but for” cause of death with
regard to Count Nine. In Burrage v. United States, 134 S. Ct. 881, 892 (2014), the
Supreme Court restricted the application of the twenty-year mandatory minimum
sentence for drug dealers whose clients suffer death or serious bodily injury from
Schedule I or II drugs found in 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C). The Court
held that “at least where the use of the drug distributed by the defendant is not an
independently sufficient cause of the victim’s death or serious bodily injury, a
defendant cannot be liable under the penalty enhancement provision . . . unless
such use is a but-for cause of the death or injury.” Id. The buyer in Burrage died
after binging on a combination of drugs obtained from other sources, as well as
heroin provided by the defendant. Id. at 885-86. Experts agreed that the heroin
made the victim’s death more likely, but, as the United States conceded, there was
no evidence on the record that the heroin taken without the other drugs would have
killed her. Id. at 885-86, 892. Likening his case to that of Burrage, Mims relies on
the toxicological analysis report which is attached to his brief as “Exhibit A” to
allegedly prove that the victim died from a combination of heroin and marijuana in
However, while it is true that the victim had both of these drugs in his
system, the medical examiner who relied on this toxicological report to form his
opinion as to cause of death would have testified at trial that, but for the heroin in
his system, the victim would have lived. And Mims stipulated and specifically
agreed to that fact in the factual basis of his plea agreement. The relevant portion of
the factual basis in the plea agreement states, “On February 21, 2013, defendant
Harold Mims distributed heroin to an individual who, later that night, overdosed
and died after ingesting the heroin . . . The autopsy report confirms that the cause
of death was multiple drug overdose, and the toxicological report indicates that
morphine was present in his blood and in his urine. Both the medical examiner and
the forensic toxicologist would testify that, in their opinion, heroin was the cause of
death.” (Doc. 27 at 7). Further, during his guilty plea hearing, Mims
acknowledged, under oath, that he stipulated to and agreed with that factual basis
in the plea agreement. (Doc. 39 at 15.) Mims also stated during his plea hearing that
he understood that, should he decide not to plead guilty, the United States would
have to prove that death resulted from the distribution of this heroin. (Id. at 11.)
Accordingly, this case is unlike Burrage in which the expert testimony was
equivocal regarding which drugs caused the death in that case, because the
toxicological expert and medical examiner who would have testified in this case
would have reached the conclusion that heroin was the “but for” cause of death.
The Court made it clear to Mims that he was pleading guilty to a crime which was
supported by the fact that the heroin he distributed to the victim caused his death.
In other words, Mims did not agree to a factual basis which provided that heroin
was a cause of death; rather, he agreed to a factual basis that heroin was the cause of
death. And, he did so because, as the United States stated during the plea hearing,
that is what the evidence would show if the case went to trial.
Contrary to Mims’s bald assertion that another expert would not have been
able to determine whether it was the heroin or the marijuana that caused the
victim’s death, the medical examiner would have testified that the heroin was the
cause of death. But for the victim’s ingestion of the heroin that Mims sold to him,
the victim would not have died. Mims has proven neither that only an unreasonable
counsel would not have sought out a different opinion, nor that such an opinion
was available. Thus, he has failed to prove deficient performance, and speculation
that such an opinion might have been available is insufficient to establish prejudice.
Because the deficient performance prong of Strickland is an objective test, this
Court need not know the actual reason counsel did not seek out a contrary expert.
It is enough that that objectively reasonable reasons exist. See Gordon v. United
States, 518 F.3d 1291, 1302 (11th Cir. 2008) (“When we can conceive of a
reasonable motivation for counsel’s actions, we will deny a claim of ineffective
assistance without an evidentiary hearing.”). Counsel’s strategy was, moreover,
successful; Mims received the lowest sentence possible, considering the facts of
To the extent that Mims asserts that his attorney coerced him into pleading
guilty and that he did not understand that he was stipulating to the fact that heroin
was the sole cause of the victim’s death, the record refutes his allegations. Before
the plea was accepted, this Court questioned Mims under oath and at length at the
hearing to ensure he pled knowingly and voluntarily. The Court asked Mims if
anyone had threatened him or coerced him in any way to get him to plead guilty, to
which he answered no. (Doc. 39 at 17.) “There is a strong presumption that
statements made [by the defendant] during the colloquy are true.” United States v.
Medlock, 12 F.3d 185, 187 (11th Cir. 1994). “[W]hen a defendant makes statements
under oath at a plea colloquy, he bears a heavy burden to show his statements were
false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir.1988). Mims has offered
no particulars to support his allegation that his attorney coerced him into pleading
guilty. Moreover, Mims was placed under oath at the beginning of his guilty plea
proceeding before he was asked any questions by the Court. Mims has made no
attempt to explain how and why his guilty plea testimony that he was not coerced
should now be deemed false. Moreover, when discussing the elements of the crime
charged in Count Nine during the guilty plea hearing, the Assistant United States
Attorney specifically informed the Court that the United States must prove that
death resulted from the distribution of the heroin by Mims. Mims stated that he
understood that element of the offense. (Doc. 39 at 11-12). Plea bargaining retains
its benefits of certainty and efficiency “only if dispositions by guilty plea are
accorded a great measure of finality.” Blackledge v. Allison, 431 U.S. 63, 71 (1977).
“[T]he representations of the defendant, his lawyer, and the prosecutor at [a plea]
hearing, as well as any findings made by the judge accepting the plea, constitute a
formidable barrier in any subsequent collateral proceedings.”
Id. at 73–74
(explaining that if the record reflects the procedures of plea negotiation and
includes a verbatim transcript of the plea colloquy, a petitioner challenging his plea
will be entitled to an evidentiary hearing “only in the most extraordinary
circumstances”). “The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions that in
the face of the record are wholly incredible.” Id. at 74. Mims’s allegation that he
did not understand that he was stipulating to the heroin being the cause of the
victim’s death is belied by the record.
In sum, Mims’s allegations of ineffective assistance of counsel are without
merit because he has not alleged facts that demonstrate deficient performance by
counsel, nor has he demonstrated sufficient prejudice as to his claim. An
evidentiary hearing is not warranted because Mims’s allegations are “based upon
unsupported generalizations” and “affirmatively contradicted by the record.”
Holmes, 876 F.2d at 1553.
For the above stated reasons, Mims has failed to demonstrate that he is
entitled to any relief from this Court, and his § 2255 motion is due to be denied and
this action dismissed.
Rule 11(a) of the Rules Governing 2255 Proceedings requires the district
court to issue or deny a certificate of appealability when it enters a final order
adverse to the applicant. This Court may issue a certificate of appealability “only if
the applicant has a made a substantial showing of the denial of a constitutional
28 U.S.C. 2253(c)(2). To make such a showing, a “petitioner must
demonstrate that reasonable jurist would find the district court’s assessment of the
constitutional claims debatable and wrong,” Slack v. McDaniel, 529 U.S. 473, 484
(2000), or that “the issues presented were adequate to deserve encouragement to
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal
quotations omitted). This Court finds that Mims’s claims do not satisfy either
standard. As such, a certificate of appealability will not be issued.
A separate order will be entered.
DONE and ORDERED on August 31, 2015.
L. Scott Coogler
United States District Judge
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